Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1887-11-07
THE HIGHER COURTS.
SyH8pses of Decisions R"ndored at tbs
Present tyler sitting vi the
Higher Courts.
Supreme Court and Commission of app sails
Renaerings-The Findings In Some
Long Delayed Gases
Supreme Court .
respondence OF the Gazette

Supreme Court.
Correspondence OF the Gazette
TYLER, Tex, Nov. 4.-R. Bogz s. Co
vs.. Sc1r eider & Davis; appeal from Tar
rant. This was proceeding for the trial
Of the right of property in stock Of
goods attached at the suit of appellees SO
beloning TO Bosz & williams, ard claimed
by the appellants. A bill of sale was
real to the jury in which Boaz & Williams
conveyed to claimant the entire stock OF
goods with which they were doing bust
ness as merchants in the city CT Fort
Worth on the dsy of its date, together
with all the notes and accounts which
were due them. 1t bore date November
10, 1882, and purported to be made in
payment Of debt due by the vendors to
the claimants, and 10 secure them against
loss on account Of Ger ain notes upon
which the claimants were suretiee for
that firm. Il was provided that in
case the goods and accounts amounted
to more than the Indebtedness
they were sold to pay, the
balance was to be paid to BoaZ & Will
Jams. Ii was shown that the claimants
on the date of the bill of sale went to the
bank and paid eff the notes Of Boaz &
Williams upon which they were sureties.
Two men were invoicing the stock-hav-
ing begun on the date of sale-when on
the morning of November IA an attach.
meat was levied upon the stock Of goods
by eppellees. The fifth assignment of
error complains Of the following charge
given by Inc court below: "You are
hereby instructed that to constitute a
valid sale there must be delivery by the
seller to the buyer, and to constitute
such delivery there must be & change in
the control Of the goods sold" Held:
In cases Of conflicting evidence the
charge must give each party the benefit
Of the hypothesis that his testimony is
true. Where the entire mass of goods
has. been sold, and must be measured
simply with view to the ascertainment
Of its price for the purpose of settle
ment the title passes 20 Tex. 204 2l1 4.
The courts charge was no. in accordance
with this view Of the lay, and taken In
connection with the eviderca was cslcu-
lated to misIead the jury. 1t tended to
make them believe that though bill OF
sale, valid upon its face, passed between
the parties, and the whole stock of goods
was thereby conveyed, and an invoice
YVES TO be taken for the purpose only Of
atc 3TtaiDiDg the amount TO be paid for
them, yet if the seller retained temporary
control of the goods, though for the pur-
pose of making the inventory, and they
we're in the process Of 80 doing wheE
the writ was levied, the it'll had not
passed to the claimant aud the goods
were liable to the plaintiffs attachment
SIS between vendee and purchaser. This
| is rot correct exposition Of the law.
This chSrge was error The subsequent
portion Of this charge did not cure the er-
! Tor, for that requires that the control OF
| the g9ods for the purpose Of meki0g
! the invoice must be in the buyer, which
we have seen is not necessary to pass
title. Reversed and remanded. Willie, c.
ii Weinstein vs. The National Bank of
FJe Hsrson; appeal from Marion. j. Vein
stein WAS merchant doing business in
Jefers8na6 lEiRg the years 1856 and was
depositof In the bank of defendant cor
poration. He was absent from December,
1885, to August, 1886, and his brother, e.
Weinstein, was his agent and attOrDey-in-
| fact during his absence. On the 9th OF
| February and also on June IL, 1886, the
cashier of the bank balanced plaintiff
psss- book and returned all checks which
had been pad By the bank up to these
dates Respectively. In August, 1886, A,
WeihstRin discovered, or claimed to have
I5discovered, that a number of checks
drawn from December 8, 1885, to June 4,
1886, ana paid by, the bank,
were forged. The aggregate amount
was 81, 082 05. These checks were
all. embraced in the pass books bal
enced and returned to plaintiff on dates
above mentioned. Appellant Instituted
this suit because Of the refusal of the
bank to repay the amount Of the
checks claiming to have been forged.
Defendant plead general denial and also
that plaintiffs agent, having at the dates
above mentioned received the pass book
and checks, and having failed to use due
diligence to detect and denounce the for
geries within reasonable time, plaintiff
WAS thereby estopped from questioning
the correctness of the account. The
court overruled an exception to the plea
of estoppel, and plaintiff assigns this
ruling as error. The exception TO the
plea was based on the ground that de-
fendant had failed to allege that they were
injured by the failure Of plaintiff to sooner
delect the forgeries. Held: This ruling
of the court was error, and the exception
should have been sustained. This is
! cured, however, by the fling OF trial
amendment containing the necessary ST.
legations" The court erred in its charge
to the jury in paragraphs 8, 10, II Of said
charge, in this: That said instructions
declared plaintiff from any recovery for
an amount, Notwithstanding all the checks
may have been forged, If the jury
found a failure on the part OF
plaintiff to examine and inspect the &C
counts and checks which were never re-
| turned to him until the 9th of February,
F18S6." This assignment of error is rot
well taken. The law and evidence de-
manded the charge in question. In ST.
other portion Of the charge the jury are
| instructed hat the bank would be liable
unless Weinstein had neglected to exsm-
inc and report the forgeries In such 9
time as worked an IL Jury to the bank, etc
Taking the charge as whole there Is no
reversible error. Further held: By
WeiDstein's failure to speak in proper
time, he virtually admits the correctness
! of the items charged. 1t is now held tina!
! an estoppel may be created not only wheI